FIRE Legal Scholarship: Article on Misapplication of Peer Harassment Law Published in ‘Journal of College and University Law’

I am happy to announce the publication of mylaw review article, The Misapplication of Peer Harassment Law on College and University Campuses and the Loss of Student Speech Rights, in the Journal of College and University Law. The journal is published by the University of Notre Dame Law School and the National Association of College and University Attorneys (NACUA). I will provide a brief summary of the article here, and you can read the entire article online in The Lantern or at SSRN.

In the article, I argue that many colleges and universities have misapplied hostile environment harassment law on their campuses, resulting in severe harm to student speech rights. Such misapplication takes two forms: the drafting and implementation of harassment policies which by their very terms are constitutionally suspect on grounds of vagueness, overbreadth, or both; and the application of harassment policies to censor or punish protected student speech. By misapplying hostile environment harassment law, colleges and universities create an impermissible "chilling effect" on student expression, stifle debate and dialogue on important social and political issues, and perpetuate other harms on their campuses.

Despite the fact that courts have indicated that harassment rationales may not contravene the First Amendment rights of students—and have uniformly struck down university harassment policies facing constitutional challenges—colleges and universities continue to misapply student-on-student (or peer) harassment law today.

In the article, I examine institutional policy and practice to argue that universities have misinterpreted and overstepped their obligations under Title IX and Title VI of the Civil Rights Act to prevent sexual and racial harassment, respectively. Actionable harassment under these statutes, properly understood, entails extreme patterns of conduct rather than pure verbal expression. The Supreme Court has stated that in order to constitute actionable peer harassment, conduct must be "so severe, pervasive, and objectively offensive, and…so undermine and detract from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities." Davis v. Monroe County Board of Education, 526 U.S. 629, 651 (1999). By taking aim at constitutionally protected speech instead of conduct that meets this precise legal standard, universities are acting contrary to both well-established case law and the guidance of the Department of Education’s Office for Civil Rights.

My article argues that a major reason for the misapplication of harassment law on university campuses has been a tendency on the part of some courts and some universities to conflate employment harassment law, governed by Title VII, with Title IX and Title VI law. The legal standards governing harassment in the employment context are unsuitable for the university setting because they fail to provide adequate breathing room for student expression and academic debate. However, taking their cue from the courts, some colleges and universities have implemented harassment policies tracking Title VII standards for workplace harassment.

The article ultimately proposes some solutions to address the problems discussed therein. Most importantly, it advocates for the elimination of institutional liability under Title IX and Title VI for peer harassment, as this would eliminate a primary motive universities have to censor and punish students’ protected speech. One hopes that by scaling back the impact that the misapplication of peer harassment law has had on college and university campuses, the expressive rights of students will be strongly protected in the future.